ONTARIO AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS DISCIPLINE TRIBUNAL
Tribunal File No.: 25-001-AS
BETWEEN:
College of Audiologists and Speech-Language Pathologists of Ontario
College
- and -
Brenda Berge
Registrant
FINDING AND PENALTY REASONS
Heard: May 29, 2025, by videoconference
Panel:
Sophie Martel (panel chair) Ioan Curca (audiologist) Rebecca Minogue (public) Dana Parker (audiologist) Sam Sinjari (public)
Appearances:
Bernard C. Leblanc and Carly S. Waisglass, for the College
Brenda Berge, not present or represented
RESTRICTION ON PUBLICATION
Pursuant to Rule 2.2.2 of the HPDT Rules of Procedure and ss. 45-47 of the Health Professions Procedural Code, no one shall publish or broadcast the names of patients or any information that could identify patients or disclose patients’ personal health information or health records referred to at a hearing or in any documents filed with the Tribunal. There may be significant fines for breaching this restriction.
The Ontario Audiologists and Speech-Language Pathologists Discipline Tribunal is the Discipline Committee established under the Health Professions Procedural Code.
Introduction
1Brenda Berge, the registrant, was registered as an audiologist with the College of Audiologists and Speech Language Pathologists of Ontario. This is not the first time that the College has brought professional misconduct allegations against her. This case concerns her failure to attend a caution ordered by the Inquiries, Complaints and Reports Committee (ICRC) and her failure/refusal to respond to the College’s correspondence in the investigation about the caution.
2The registrant did not participate in this proceeding. We found that she had been properly notified and proceeded in her absence.
3At the hearing, we concluded that in failing to attend the caution and failing or refusing to respond to College correspondence, the registrant engaged in disgraceful, dishonourable or unprofessional conduct.
4We heard submissions on penalty and costs but reserved our decision. Considering the serious misconduct in this case as well as the registrant’s past conduct and her failure to participate in various proceedings including this one, we find the registrant to be ungovernable. We, therefore, revoke her certificate of registration. We also order a reprimand and costs of the proceeding.
Registrant’s non-participation
5On January 10, 2025, the College sent the Notice of Hearing and a link to the disclosure brief to the registrant by email at the registrant’s email address on file with the College. That same day, the College filed the Notice of Hearing with the Tribunal.
6The Tribunal sent both parties its standard introduction letter setting a case management conference and providing detailed information about the proceeding. As College counsel was not available on the scheduled date, the Tribunal Office subsequently emailed both parties about their availability. The registrant did not respond to the Tribunal’s inquiries. On January 15, 2025, the Tribunal sent an email to both parties advising them that the case management conference would take place on April 1, 2025.
7The registrant did not attend the case management conference. The case management direction (CMD) of April 2, 2025, scheduled the hearing for one half day on May 29, 2025. The CMD advised the registrant that the proceeding may have significant effects on her interests, including penalties as serious as revocation of her certificate of registration and an order to pay costs to the College. The CMD further stipulated that if the registrant did not attend, the hearing may proceed in her absence and orders may be made in her absence under s. 7 of the Statutory Powers Procedure Act, RSO 1990, c. S.22. The Tribunal Office sent the CMD to the registrant by email.
8On May 15, 2025, the Tribunal sent an email to both parties confirming the hearing date and providing information regarding the filing of documents. On May 21 and 22, 2025, the College submitted its hearings documents by email to the Tribunal and the registrant.
9The College also attempted to personally serve its materials on the registrant at her hearing clinic and last known residential address in Guelph, the same city where her clinic is located. The clinic was closed on the process server’s first visit. The process server attempted to call the office, but his call went to voicemail. He reattended the clinic on May 27, 2025, at which time a woman advised that the registrant was not in the office but may be in the following week. The registrant’s certificate of registration is currently suspended such that it is not surprising that she would not be in the clinic. On May 26, 2025, the process server attended the registrant’s last known residential address in Guelph but was advised by the current owner that the registrant had last owned that residence three years prior.
10On May 28, 2025, the College attempted to serve the registrant with hearing documents at another last known residential address in another Ontario town. This is not an address the registrant has communicated to the College as her official address. Rather, College counsel advised at the hearing that this is an address that investigators had used in trying to locate the registrant five years ago in respect of previous proceedings. No one was home when the process server attended this address, but a neighbour confirmed that the registrant resided at the address but only on weekends. The process server left the materials at the address and mailed them by regular mail.
11As a result of this last-minute turn of events, the College requested a short adjournment to allow the registrant an opportunity to receive the hearing documents at the weekend address. We refused the adjournment and proceeded in the registrant’s absence.
12The Tribunal’s Rules of Procedure provide that documents and communications with the Tribunal shall be delivered to all participants by email. It also permits other methods (a secure file transfer service, another method directed or permitted by the Tribunal or another method agreed to by the recipient) not applicable in the current circumstances. There is no evidence that the emails sent to the registrant were not received by her. The emails were not returned to the College as non-deliverable. Furthermore, pursuant to the College’s By-laws, it is the registrant’s responsibility to provide the College with accurate and up-to-date contact information including her preferred email address. The College and the Tribunal communicated with the registrant at the email address on file with the College. Neither the College nor the Tribunal is obliged to use herculean efforts to locate the registrant to serve her with documents. In our view, there is no obligation to attempt to serve the registrant at an address she appears to only use on weekends.
13There is also evidence of the registrant partly engaging in other recent discipline matters such that she is likely receiving communications sent to her addresses on file with the College. In 2023, she brought an unsuccessful motion asking for an order removing the College’s counsel of record in three other proceedings (College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2023 ONCASPD 5). In April 2024, she filed materials on the eve of another hearing (College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 1).
14We recognize that the College’s request for an adjournment was unopposed given that the registrant did not attend the scheduled hearing date. Rule 10 of the Tribunal’s Rules of Procedure and the Practice Direction on Adjournments set out the Tribunal’s strict adjournment policy. Adjournments are only granted where it is necessary for a fair hearing, even when the parties consent to the adjournment. The Tribunal must also consider broader institutional and public interests. Last-minute adjournments can impair the public’s confidence in the timely adjudication of professional misconduct allegations. They also cause wasted resources because of the time of hearing services staff, counsel and adjudicators. The time of five adjudicators was reserved for this hearing date.
15In The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484 at para. 37, the Court of Appeal set out a non-exhaustive list of factors that should influence the discretionary decision whether to grant an adjournment:
Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.
16We note that the matter before us is one where the registrant failed to comply with an ICRC order and failed to respond to communications from the College. Neither the College nor the Discipline Tribunal has received any indication that the applicant now intends to respond to communications involving this matter. Furthermore, the registrant’s recent past history with the College and the Discipline Committee supports the conclusion that the registrant does not intend to participate in the current proceeding given her failure to participate in past hearings and comply with past orders. This history is discussed in our conclusion below finding that the registrant is ungovernable.
17In conclusion, we are satisfied that the registrant received notice of the proceeding and that an adjournment would unduly prolong the adjudication of this matter in respect of a registrant who has repeatedly failed to comply with past orders and repeatedly failed to attend hearings before the Discipline Committee (now the Discipline Tribunal).
Failure to attend the caution and respond to College correspondence
18On September 14, 2023, the ICRC rendered a decision regarding the registrant’s infection control procedures, her continued use of the title “doctor” in her public identity as an audiologist, and her public opinions about COVID-19. Regarding the use of the doctor title, the ICRC decided that a caution would address its concerns with respect to the registrant’s professional identity when making public statements. It directed that the registrant attend a caution within 90 days of its order – on or before December 13, 2023.
19The College subsequently twice communicated with the registrant by email at her last known email address asking for her availability to attend the caution. The registrant never responded to the College’s communications such that the ICRC was unable to deliver the caution, contrary to the ICRC’s order.
20On January 19, 2024, the College Registrar appointed investigators to investigate whether the registrant had committed professional misconduct by failing to comply with the ICRC order of September 14, 2023. The College notified the registrant of the investigator appointment by email on February 13, 2024. In late February and March 2024, the investigator made multiple attempts to contact the registrant by email and phone. He left voicemail messages asking for a return call and asked the registrant by email to provide her availability for an interview. The registrant never responded to the investigator’s attempts to contact her. On April 16, 2024, the College delivered a letter to the registrant by email and mail requesting a written response to the investigation within 30 days. The mailed package was returned to the College as unclaimed. The registrant never responded to the email communication.
21On November 18, 2024, the ICRC referred the allegations of failure to respond to the caution and failure to respond to the College investigation to the Discipline Tribunal.
22In summary, the registrant never responded to the College’s attempt to schedule the ordered caution, never attended the caution, and never responded to the College investigation regarding her failure to attend the caution.
23Section 1 of O. Reg. 749/93 (the professional misconduct regulation) under the Audiology and Speech-Language Pathology Act, 1991, SO 1991, c. 19 sets out acts of professional misconduct. Paragraph 37 of s. 1 provides that it is professional misconduct to engage in conduct or perform an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
24A serious or persistent disregard for one’s professional obligations is captured in the definition of disgraceful, dishonourable or unprofessional conduct (see for example, College of Audiologists and Speech-Language Pathologists of Ontario v. Jakubov, 2025 ONASLPDT 1 at para. 130). By failing to attend the ordered caution and failing to or refusing to respond to the subsequent College’s correspondence investigating the matter, we conclude that the registrant contravened paragraph 37 of the professional misconduct regulation.
Penalty
25The College submitted that the registrant is ungovernable such that her certificate of registration should be revoked.
26In deciding whether the registrant is ungovernable, we have considered the following factors:
- the nature, duration and repetitive character of the misconduct;
- any prior discipline history;
- any character evidence;
- the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;
- the degree of willingness to be governed by the College;
- medical or other evidence that explains (though does not excuse) the misconduct;
- the likelihood of future misconduct, having regard to any treatment being undertaken, or other remedial efforts; and,
- the registrant’s ongoing cooperation with the College in addressing the outstanding matters that are the subject of the misconduct. (Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088 at para. 35.)
The registrant’s prior history
Prior discipline history
27In concluding that the registrant is ungovernable, we have relied on the findings made by the Discipline Committee (now known as the Discipline Tribunal). In March 2015, the Discipline Committee found that the registrant had committed professional misconduct by referring to herself as a “doctor” and using the title “doctor” while providing or offering to provide health care despite prior warnings not to do so. The Discipline Committee ordered a reprimand, a three-month suspension of the registrant’s licence to practise, and terms, conditions and limitations on her licence including the successful completion of an ethics course and unannounced inspections of her practice. The registrant then unsuccessfully sought to appeal this decision and initiated multiple other court proceedings, which were all dismissed. In Berge v. College of Audiologists, 2021 ONSC 4403, the Divisional Court held at para. 10:
Enough is enough. It is clear that Ms Berge does not accept that her discipline case has been decided finally and is over. Ms Berge is hereby prohibited from bringing any further motions or taking any further steps in this proceeding or from commencing or pursuing any further proceedings against the College…related to the underlying discipline case without first obtaining prior permission from an administrative judge of the Divisional Court to do so.
More recent matters
28In College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 1, the Discipline Committee concluded that the registrant committed professional misconduct regarding a client who had been referred to her. Some first initial positive exchanges were followed by long and unexplained delays on the registrant’s part. The client experienced months of fruitless and frustrating attempts to receive the treatment the registrant promised to provide, including months when the registrant failed to respond to any of the client’s emails. The Discipline Committee concluded that the registrant’s conduct was disgraceful, dishonourable or unprofessional, that the registrant failed to maintain a standard of practice of the profession, that she discontinued services that were needed, that she failed to refer the client to a more appropriate service, that she breached an agreement related to professional services and that she failed to keep records as required.
29In respect of the above proceeding, the registrant did not attend the scheduled hearing but sent a large volume of documents to the Discipline Committee on the eve of the hearing. The Discipline Committee rejected the registrant’s assertion that the Discipline Committee was operating beyond the scope of its authority and jurisdiction.
30The registrant also did not participate in the subsequent hearing to consider penalty and costs. The Discipline Committee ordered a reprimand, a nine-month suspension, and terms, conditions and limitations on the registrant’s certificate of registration including the successful completion of the PROBE course in ethics and professionalism, a Registrar-approved record-keeping course and a mentorship program: College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 4. The order stipulated that the suspension was to continue until the registrant successfully completed these requirements.
31In College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 2, the Discipline Committee found that the registrant engaged in disgraceful, dishonourable or unprofessional conduct when she posted misleading or incorrect communications about COVID-19 intended to dissuade the public from following public health measure during a global pandemic. The Discipline Committee ordered a reprimand and a two-month suspension, which was to continue until the registrant completed remediation activities (College of Audiologists and Speech Language Pathologists of Ontario v. Berge, 2021 ONCASPD 5). The registrant did not attend the merits and the penalty hearings in respect of this matter.
32In June 2024, the Discipline Committee found that the registrant engaged in professional misconduct when she failed to cooperate with an investigation and made or repeated a statement on social media that was inappropriate and offensive: College of Audiologists and Speech-Language Pathologist of Ontario v. Berge, 2024 ONCASPD 3. The Discipline Committee ordered a reprimand, a six-month suspension and terms, conditions and limitations on her certificate of registration including the completion of various courses: College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 6. The registrant did not attend the hearings relating to this matter.
33The registrant’s suspensions ordered in the 2024 matters remain in effect because the registrant has not completed the ordered terms, conditions or limitations.
Conclusion on penalty
34In summary, in the last 10 years, the registrant has been found to have engaged in professional misconduct four times. Other than the 2015 case, which she repeatedly and unsuccessfully challenged in the courts, the registrant has for the most part, not participated in the discipline hearings. She brought an unsuccessful motion asking for an order to remove the College’s counsel of record in the three most recent proceedings (College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2023 ONCASPD 5) but then failed to attend the subsequent merits and penalty hearings. She filed materials on the eve of one of her hearings but also then chose not to attend that hearing or any subsequent hearing.
35We are cognizant that only the 2015 discipline finding constitutes an aggravating factor when considering whether the registrant has a prior discipline history. The other three 2024 matters that resulted in professional misconduct findings and penalty orders occurred after the misconduct that has led to the present proceeding. As submitted by the College, however, events that occur contemporaneously or after the misconduct in the present case should also be considered in determining an appropriate penalty because this history is relevant in assessing the risk of recurrence (Terjanian c. Dentistes (Ordre professionnel des), 2019 QCTP 44 at para. 67).
36The primary purpose of the College and of a penalty order is the protection of the public. A penalty order must demonstrate to the public that the profession can and will address misconduct appropriately and that it can regulate its registrants effectively. The registrant’s repeated failure to respond to her regulator demonstrates that she is not willing to be governed by the College’s rules, which are put in place to protect the public, particularly those who seek services from registrants. The registrant’s repeated failure to respond to College investigations, comply with orders (including the proven misconduct in this case of failing to attend a caution), and attend discipline hearings (including the current hearing) demonstrate a pattern of ungovernability.
37Furthermore, the registrant did not tender any mitigating evidence or other evidence that may explain the misconduct and her failure to participate. There is no evidence of remorse, rehabilitation or a willingness to now cooperate with the College. On the contrary, the registrant’s failure to engage with her regulator makes it clear that she is unlikely to cooperate with the College in the future.
38We conclude that the registrant is ungovernable and order the revocation of her certificate of registration.
39We also accept the College’s submission that while a reprimand will not resonate with the registrant, it will serve the purpose of demonstrating to the public that the Discipline Tribunal takes this type of misconduct and the failure to engage with the College seriously. We, therefore, also order a reprimand, which will be delivered in writing given that the registrant is unlikely to attend to be reprimanded.
Costs
40Under s. 53.1 of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18), the Tribunal may, in an appropriate case, make an order requiring a registrant the panel finds has committed an act of professional misconduct or is incompetent to pay all or part of the following costs and expenses: (1) the College’s legal costs and expenses; (2) the College’s costs and expenses incurred in investigating the matter; and (3) the College’s costs and expenses incurred in conducting the hearing.
41We find that this is an appropriate case in which to order costs. The College was successful in proving the misconduct set out in the Notice of Hearing. The profession as whole should not bear the entire expense of a registrant’s regulatory proceeding where misconduct has been proven.
42The College submits that the registrant should be ordered to pay $26,917.70, which is two-thirds of the College’s actual costs of $40,376.55, as per its costs brief. The College relied on Bayfield v. College of Physiotherapist of Ontario, 2014 ONSC 6570 in support of its submission that a two-third percentage of the actual costs is a reasonable approach in the context of proceedings relating to regulated health professionals.
43While we are of the view that the costs are at the high end for a hearing that took a half day, we also note that pursuant to case management directions, the bulk of the College’s submissions were made in writing, such that the majority of College counsel’s time on this matter was not spent at the hearing but in preparation for the hearing. This shortened the length of the hearing, which saved time and costs overall, but resulted in more time spent prior to the hearing. The College was successful in respect of this submission. Furthermore, the registrant’s repeated failures in responding to the College’s email communications resulted in the College expending time and resources in attempting to serve her with materials in person.
44The registrant did not participate. We heard no argument or evidence in support of a lower cost award than that which was requested. We also note that the three prior 2024 costs decisions for this registrant similarly awarded the College two-thirds of its actual costs. Accordingly, we award the College costs of $26,917.70.
Order
45We order:
Penalty
The Tribunal requires the registrant to be reprimanded. The reprimand will be delivered in writing with the fact and text of the reprimand to appear on the College’s public register.
The Tribunal directs the Registrar to revoke the registrant’s certificate of registration effective immediately.
Costs
- The Tribunal requires the registrant to pay the College costs in the amount of $26,917.70 by May 29, 2026.